The plaintiff in the suit is the appellant herein. He has come up with the present Second Appeal challenging the judgment and decree 11.11.2011 passed in A.S.No.98 of 2011 by the Principal District Court, Namakkal, reversing the judgment and decree dated 04.03.2010 passed by the Sub Court, Rasipuram in O.S.No.42 of 2008.
2. According to the appellant/plaintiff, the suit property in S.No.229/2 originally belonged to his grandfather Muthu Gounder. The said Muthu Gounder executed a Will on 21.06.1976 in his favour and after the death of Muthu Gounder, the property in S.No.229/2 absolutely belonged to him and he is in possession and enjoyment of the property.
3. It is further stated by the appellant/plaintiff that on the North of the suit property, there is a cart track and in the land survey scheme, the cart track was separately surveyed as S.No.229/2A1 and the agricultural lands were separately surveyed as S.No.229/2A2. In S.No.229/2A2, on the Northern side, trees such as tamarind, margosa and palm trees were planted. The plaintiff is using the said pathway to enter the lands in S.No.229/2A2 and in the said pathway, there is a cart track, which is the plaintiff's separate cart track. While so, the respondents/defendants as also the Contractors, trespassed into the said cart track on 08.12.1998 and wanted to lay down concrete road and heaped jalli stones for that purpose. Though the appellant/plaintiff objected and resisted the respondents/defendants not to lay concrete road, the defendants laid a concrete road, which is now being used as a public road. It is the case of the appellant/plaintiff that the respondents/defendants have no right to use the pathway and also have no right to lay the concrete road. Hence, he filed a suit in O.S.No.42 of 2008 for recovery of possession of the suit property and in the alternative, claimed damages of Rs.1,25,400/- together with interest at 12% per annum.
4. The Trial Court, on a consideration of the entire oral and documentary evidence on record, came to the conclusion that the entire property in S.Nos.229/2A1 and 229/2A2 belongs to the appellant/plaintiff and patta has been duly issued in his favour, and thus, the trial Court decreed the suit in favour of the appellant/plaintiff. Aggrieved by the said judgment, the defendants preferred an appeal in A.S.No.98 of 2011 before the Principal District Court, Namakkal and the First Appellate Court, by a judgment dated 11.11.2011, allowed the appeal, thereby, set aside the judgment and decree of the Trial Court. Challenging the judgment and decree of the Trial Court, the plaintiff in the suit is before this Court by way of the present Second Appeal.
5. Learned counsel for the appellant contended that the First Appellate Court failed to see that in the revenue documents, patta for suit property stands in the name of the appellant and merely because it was mentioned that there is a cart track in the suit property, it cannot be assumed that it is a public road. It is his further contention that the First Appellate Court failed to see that the respondents high-handedly trespassed into the suit property and laid concrete road, though it was promptly objected by the appellant before various authorities, as evidenced by Exs.A7 to A19.
6. On the other hand, learned Government Advocate appearing for the respondents submitted that the road in question has been used by the public as a public road and that the Panchayat erected street lights (lamp posts) in 1993 and concrete road in 1998. If, according to the plaintiff, the road in question is his property, he should have approached this Court at least in the year 1998, instead, he has filed the suit only in 2001. Learned Government Advocate pointed out that the appellant/plaintiff did not express any objection when concrete road was laid in the cart-track and electric poles were erected.
7. The substantial question of law that arises for consideration in this appeal is :
Whether the judgment and decree of the First Appellate Court, which is based on the assumption that the suit property is a public road, is vitiated by perversity, in view of the absence of any evidence on record to support such assumption?
8. According to the respondents/defendants, S.No.229/2 was subdivided as S.No.229/2A1 - the cart track and S.No.229/2A2 - agricultural lands. But, according to the appellant/plaintiff, he is the absolute owner of the suit property in S.No.229/2 as per the registered Will dated 21.06.1976 executed by Muthu Gounder and the cart-track belonging to him has been converted into a public cart-track. The Trial Court, after taking into consideration the entire evidence, more particularly Ex.P22 Patta, dated 05.11.2009, decreed the suit in favour of the appellant/plaintiff, holding that the defendants did not prove by letting in sufficient evidence that the cart-track in question is being used as a public cart-track.
9. It is seen that the First Appellate Court by completely ignoring Order 41 Rule 31 C.P.C., has framed a question in paragraph 8 of its judgment, however, taking note of various Exhibits vide Ex.A1 to A27, and also discussing the evidence of the parties, came to the conclusion that the finding of the Trial Court is incorrect and reversed the same. The First Appellate Court has proceeded on the basis that a concrete road was laid in the cart-track in the year 1993, apart from the fact that street lights (lamp posts) were erected there and that the appellant/plaintiff made no objections to the same. After taking note of the evidence of P.Ws.1 and 2, the First Appellate Court held that by doctrine of acquiescence and laches, the plaintiff is not entitled for recovery of possession and any damages.
10. For better appreciation of the case, the cross-examination of P.W.1 is extracted hereunder:
vd; jhj;jh Kj;Jf;ft[z;lh; ,Ue;j fhyj;jpy; ,Ue;nj tz;og;ghij cs;sJ vd;why; rhp/ 1993k; Mz;onyna tz;og;ghijia xl;o tz;og;ghijapy; fk;gk; elg;gl;L bjUtpsf;F nghlg;gl;lJ vd;why; rhpay;y/ th/rh/M/1y; rh;nt vz;/229/2. vd;W kl;Lk; jhd; Fwpg;gplg;gl;Ls;sJ vd;why; rhp/ th/rh/M/1y; gpur;rpidf;Fhpa tz;og;ghij bghUj;J jdpahf Fwpg;gpltpy;iy/ khK:y; ghij vd Fwpg;gplg;gl;Ls;sJ/ th/rh/M/2 capy; rhrdj;jpy; gpur;rpidf;Fhpa tz;og;ghij bghUj;J thrfk; Fwpg;gpltpy;iy vd;why; rhp/ th/rh/M/3y; epytpay; tz;og;ghij vd Fwpg;gplg;gl;Ls;sJ vd;why; rhp/ 1998y; ehkfphpg;ngl;il g";rhaj;jpy; jhth ghijapy; 70 kPl;lh; ePsj;jpw;F rpbkz;l; ghij nghlg;gl;lJ vd;why; rhp/ me;j rpbkz;l; ghijapd; mfyk; 4 kPl;lh; vd;why; rhp/ 1998y; fhd;fphPl; nuhL nghlg;gl;l gpd;g[ 2001k; Mz;oy;jhd; ,e;j tHf;if Kjypy; ehkf;fy; rhh;g[ ePjpkd;wj;jpy; jhf;fy; bra;njd; vd;why; rhp/ jhth tz;og;ghij th/rh/M/24 Mtzj;jpy; epytpay; tz;og;ghij vd Fwpg;gplg;gLs;sJ vd;why; rhp //// jhth thij vdf;F jdpg;gl;l Kiwapy; ghj;jpak; vd;gij fhl;l g[y tiuglk; jhf;fy; bra;atpy;iy/ ePjpkd;w Mizaiu miHj;Jr; brd;W brhj;Jf;fis mse;J jhth ghij vd;Dila brhj;jpy; cs;sJ vd;gij cWjpg;gLj;j ehd; eltof;if vLf;ftpy;iy /// vd;Dila gl;lh epyj;ij xl;ona Mj;J}h; nghFk; bkapd;nuhL cs;sJ/ Mj;J}h; bkapd;nuhl;oypUe;J vd;Dila brhj;Jf;F neuoahf bry;y Koa[k;/ epytpay; tz;og;ghij r/vz;/229/2V1 vd jdpahf rg;otpt&d; bra;ag;gl;Ls;sJ vd;why; rhp/ P.W.2, the adjacent land owner, during his cross-examination has admitted as under:
jhth fhd;fphPl; nuhL nghlg;gl;L Rkhh; 10 Mz;Lfs; ,Uf;Fk;/ jhth ghijapd; Xuj;jpy; kpd; fk;gk; elg;gl;L bjU tpsf;Ffs; nghlg;gl;Ls;sJ vd;why; rhp/ jhth ghij tHpah nghdhy; Rlfhl;ow;F nghf Koa[k; vd;why; rhp/
11. A reading of the evidence extracted supra and the discussion of the First Appellate Court, would show that the First Appellate Court rendered perverse findings, as the suggestion put forth by the appellant herein was denied. The denial has been construed as admission by the First Appellate Court. It is not as if the appellant/plaintiff has taken the public pathway and converted the same into a private property and thereafter it was retrieved by the Government. It is an admitted case that the cart-track in S.No.229/2A1 belongs to the appellant/plaintiff. The case of the respondents herein is also that the property belongs to the appellant/plaintiff, but, however, it is now being used as a public road. If the public road has been taken by the appellant/plaintiff, certainly, the contention of the respondents would be correct. But, that is not the case herein.
12. In the case on hand, the Government is a trespasser of the property belonging to the appellant/plaintiff. In all fairness, the Government should have followed the procedures for acquiring the land and that has not been done in this case. The appellant/plaintiff sought an alternative plea in the suit that in the event of not getting back the land in question, compensation for the same may be paid to him. Undoubtedly, there is misreading of evidence by the First Appellate Court and this Court is of the view that the finding of the First Appellate Court has got to be interfered with.
13. Learned counsel for the appellant produced a judgment of the Hon'ble Supreme Court in the case of D.R.Rathna Murthy vs. Ramappa, reported in (2011) 1 SCC 158, wherein, it is held that the High Court is empowered to interfere with the findings of fact even in the Second Appeal, if the findings recorded by the Courts below are found to be perverse. Relevant portion of the said reads thus:
9. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse, i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on the surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings.
14. Learned Government Advocate appearing for the respondents relied on a decision of the Supreme Court in the case of State of U.P. and another Vs. Keshav Prasad Singh, reported in (1995) 5 SCC 587, wherein the Apex Court held that invoking the urgency clause and on the basis of the Doctrine of Eminent Domain, the State can acquire a land for public purpose. In that case, the Apex Court gave liberty to the claimant to put forth his claim for compensation according to law and it would be decided by the Land Acquisition Officer in accordance with law.
15. Though the appellant/plaintiff is entitled to the relief sought by him, as has been granted by the Trial Court, now that the Government has laid a concrete road on the cart track and that it is being used for public purpose, this Court interferes with the judgment of the First Appellate Court and is of the view that the alternative relief sought by the appellant/plaintiff could be granted. Accordingly, in the light of the decision rendered by the Supreme Court in the case of State of U.P. and another vs. Keshav Prasad Singh, (cited supra), this Court modifies the judgment and decree of the First Appellate Court to the effect that the respondents/defendants shall pay compensation of a sum of Rs.1,25,000/- to the appellant/plaintiff for the land in question, as pleaded by him in the suit as an alternative relief, together with interest at 9% per annum from the date of the suit till the date of payment.
16. This Court makes it clear that if the said compensation is not paid to the appellant/plaintiff within two months from the date of receipt of a copy of this judgment, the original judgment and decree of the Trial Court in O.S.No.42 of 2008 will be restored.
17. The substantial question of law is answered in the above terms. The Second Appeal is allowed in part, modifying the judgment and decree of the First Appellate Court. No costs.